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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations
Issue 34 - Evidence - April 26, 2018
OTTAWA, Thursday, April 26, 2018
The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:30 a.m., in public and in camera, for the review of Statutory Instruments.
Senator Joseph A. Day and Mr. Harold Albrecht (Joint Chairs) in the chair.
Appearance of Witnesses from the Department of Justice
(ACCESSIBILITY OF MATERIAL INCORPORATED BY REFERENCE)
The Joint Chair (Mr. Albrecht): We have with us today witnesses from the Department of Justice. They have been invited to discuss the new requirements in the statutory instruments. The three principles we’re focusing on today are accessibility and what that means in terms of official languages, cost, and also whether all the versions will be available for those who would need to access those materials.
Welcome and thank you, Ms. Khanna and Ms. Pledge, for being with us today. We will have your opening statements now and then we’ll open it up to questions from committee members.
Mala Khanna, Deputy Assistant Deputy Minister, Public Law and Legislative Services Sector, Department of Justice Canada: Good morning. Thank you very much for inviting us to discuss these important issues today. My name is Mala Khanna, and I’m the Deputy Assistant Deputy Minister of the Public Law and Legislative Services Sector at the Department of Justice. I’m joined by Patricia Pledge, Senior Counsel in the Legislative Services Branch of the Department of Justice.
We are very pleased to have the opportunity to discuss the issues raised in Report No. 90 concerning accessibility of documents incorporated by reference in federal regulations.
The committee noted in its report that the use of incorporation by reference in federal regulations is becoming increasingly frequent. The Department of Justice has also noticed the same trend. As the complexity of the regulatory environment grows, greater reliance on this technique is a key part of a highly integrated regulatory system.
This was one of the driving factors behind the amendments to the Statutory Instruments Act made in 2015. In fact, ensuring access to the use of this technique was one the recommendations of the External Advisory Committee on Smart Regulation as early as 2004. This is an issue that spans many years.
As a result, regulators who use this tool have obligations that go hand in hand with the use. That’s why a central feature of the amendments to the Statutory Instruments Act included the enactment of a provision requiring the regulatory authority to ensure that documents incorporated by reference are accessible. At the time, your committee recognized that this was an important step forward.
While our respective views on what the Statutory Instruments Act requires in respect of accessibility may differ, we understand and share the committee’s continued interest on the accessibility of incorporated materials. The issue of accessibility is one that the government has considered carefully.
As was stated during the passage of the Incorporation by Reference in Regulations Act in 2015, given the wide array of materials incorporated by reference in federal regulations, Parliament made the decision to adopt a flexible approach to what is meant by accessible.
A balance has been struck. The approach adopted in the Statutory Instruments Act clearly makes the obligation express and binding. The flexible approach also ensures that it is a technology-neutral requirement and prescriptive requirements are avoided so as to avoid barriers to innovation.
That said, the government’s position remains that a document is accessible when the people to whom it applies can obtain a copy of the document with reasonable effort, and the document itself is intelligible. The government’s position also remains that a document must be incorporated in both official languages unless there is a legitimate justification, also called a “legitimate reason,” for incorporating it in only one official language. Legitimate justifications are, for example, when a standard is particularly technical or is frequently changed, making it difficult to translate, or when the purpose of the standard is harmonization or cooperation between governments.
Mr. Chair, you requested that the Department of Justice compile a list of all documents incorporated by reference with additional information including the source of the document, the languages in which it is available and the cost, if any.
The Department of Justice has devoted significant resources in response to this request. As agreed during discussions with the general counsel to your committee, the focus of our efforts was on four big regulators: Environment and Climate Change Canada, Transport Canada, Health Canada, and the Canadian Food Inspection Agency.
In response to the committee’s request, we are pleased to provide you with two lists of documents incorporated by reference as of December 31, 2017. As we mentioned in the letter accompanying the two lists, the longer of the two represents the raw data that we are working on. It is a compilation of all the regulations from the four regulators using the incorporation by reference technique. We were unable to check the accuracy of those data. So you must not rely on them. It is almost certain that this list contains inaccuracies. We have shared it with you to illustrate what we have accomplished so far.
We have also provided a shorter list that is a representative sample from the four big regulators. We have taken care to ensure that it is an accurate sample that is representative of the types of typical incorporations by reference of each of these four big regulators.
This representative sample consists of about 85 incorporated documents. To put this in context, it represents about 6 per cent of the data that is contained in the longer list and about 1 per cent of all federal regulations.
While it does not offer enough data to draw any firm conclusions, it is illustrative of the variety of documents that are incorporated in federal regulations.
Even of the smaller number of documents here, which, again, is just a sample, approximately 70 per cent of the documents are bilingual, or 56 out of 85, while 30 per cent, or 29 out of the 85 documents incorporated by reference, are unilingual.
Seventeen per cent, or 15 out of 85, are documents generated by the regulation-making authority itself.
Twenty-two per cent, or 19 out of 85, are references to provincial or territorial legislation.
Thirty-nine per cent, or 33 out of the 85 documents, originate from American or international sources.
For the documents that do have a cost, the highest price was $485, but at least 70 per cent of the documents were available without cost, or 59 out of 85.
This list gives you useful information, but in terms of language and costs, it is impossible to tell from the figures whether a document is available free of charge in “read-only” mode, and whether the regulator takes other steps to ensure that the document is available. The list contains no information as to whether there is a legitimate reason that would justify incorporation in only one official language. Nor does it indicate whether other standards are available, perhaps at a lower cost, or whether the standard is the most up-to-date.
The list is merely a snapshot that offers some input and some data. It is a small part of the whole picture.
The Department of Justice examines proposed regulations, including any proposed incorporations by reference, in accordance with sections 3 and 18.1 of the Statutory Instruments Act in order to provide advice on the legal issues around the use of the technique, including advice concerning accessibility. Ultimately, it is up to the regulation-making authority to decide whether or not to use the technique and whether or not its use advances their regulatory goals.
In accordance with section 18.3 of the Statutory Instruments Act, the regulation-making authority must ensure that the material it incorporates is accessible. This is a meaningful obligation, but what this obligation means will differ from one case to the next. For example, where the incorporated material is provincial legislation, then the regulation-making authority need not take many steps to ensure it is accessible. In cases where the document that is incorporated by reference is generated by the regulation-making authority itself, then the document will always be available without charge, easily accessible on the department’s website and in both official languages.
While some materials are subject to copyright protection and may require a fee to access, in many cases, these standards which can be purchased may also be available without any cost for “view-only” or “read-only” access, or the regulation-making authority may take other steps to ensure that the document is accessible.
The Legislative Services Branch and the Departmental Legal Services Unit at the Department of Justice share the responsibility of examining the proposed regulation and then examine the document proposed to be incorporated by reference to review issues of accessibility and the content of the document to ensure that it is authorized to be part of the regulation. Where necessary, the Official Languages Directorate in the Department of Justice is also consulted to seek advice about whether or not a proposed unilingual incorporation by reference is acceptable in any given case. All parts of the department work together to ensure that the best advice is given to a regulator that proposes to incorporate a document as part of their regulatory system.
The exercise of constructing the list has been an instructive one for the department and for the government. It provides a snapshot of the complexity of the interaction of federal regulations with provincial legislation, legislation of our trading partners, including the United States, the reliance on national and international standards, which contribute to regulatory alignment, access to expertise, and the reality of the technique for the regulated community and the public.
As mentioned in the government’s response, we are working with the Treasury Board Secretariat to explore opportunities to articulate best practices to enhance accessibility. This, together with other regulatory initiatives, provides a timely opportunity to gain information and develop policy. Treasury Board Secretariat is also looking more broadly at how the technique of incorporation by reference is being used in existing federal regulations through the use of artificial intelligence and semantic analysis. This will be informative about how frequently the technique is being used.
We will build on the lessons learned from creating the list. We will use it to guide our work on future developments in incorporation by reference and to guide our dialogue with standards development organizations and regulators. This will be part of the regulatory reform initiatives.
Thank you. We are ready to answer any questions you may have.
The Joint Chair (Mr. Albrecht): Thank you very much for your presentation. In the future, it would be really helpful if the committee members had a copy of your notes, especially when they are so heavily laden with facts and numbers. It is difficult for all of us to refer back to the numbers you were referring to. Maybe you could provide those speaking notes to us later. That would be helpful.
Ms. Khanna: With pleasure.
The Joint Chair (Mr. Albrecht): Thank you. We’re going to move to questions by committee members. Just let me know when you want to speak.
Mr. Dusseault: Thank you for being here this morning to discuss this topic, which has been debated at length in the House of Commons. With respect to the incorporation by reference bill, a number of concerns were raised in committee, and you mentioned several of them.
First, in the list you provided today, if we look at the first example, some documents can cost up to $450. After what amount do you think a document is too expensive? What are the quantitative or qualitative criteria that determine accessibility?
Ms. Khanna: Thank you for the question. The approach is a contextual and flexible one as to what is accessible, and our position is that a document may still be accessible even if there is a reasonable cost to access it. That will be a determination made by the regulating authority, taking into consideration all of the relevant factors.
Mr. Dusseault: I am surprised that such a list does not already exist and that you have worked hard to create this partial list. I am surprised that the Government of Canada has no central authority that is able to find out the status of incorporations by reference across all Canadian federal regulations.
Would that at least be an option? Unless you tell me that it has already been done, but with the answer you are giving us today, I would be very surprised, given that you said that it was instructive and sometimes even difficult to create a list like that.
In Canada, can we consider a central authority that could check the status of incorporations, prices and accessibility at the same time? Do you think that could improve our system?
Ms. Khanna: What I can say is that it has been a tremendous amount of work to put together this list. Identifying the use of incorporation by reference is an easier job than going through and determining the cost and whether it is available in both official languages.
We do agree that this has been a useful exercise, but the environment is a very dynamic one. With ambulatory incorporation by reference, we see that there is — and that is the purpose of the technique — a change. So being able to keep such a list or database up to date would prove to be very challenging.
As I say, working with Treasury Board we do hope to be able to have a better sense of the use of incorporation by reference, but at present this is what we have.
Mr. Dusseault: Is there at least one person in each department who follows up on the accessibility of each incorporation? For example, if the price is $450 today, will someone make sure that, over time, it does not become $950 or that it is not written only in German? Is there some follow-up? If so, why is it so difficult to get lists?
Ms. Khanna: The Department of Justice does provide legal advice in the context of its review under the Statutory Instruments Act, and accessibility is one area in which the advice is provided. So there is that review that is done at that place to ensure that it is accessible, “accessible” being defined, again, according to the context.
Senator Woo: Thank you for your testimony.
It strikes me that at the heart of the challenge of incorporation by reference is the growing complexity of regulation and the interconnectedness of regulations globally. But the growing complexity also, I think, reflects a certain technological change in the world that may help to deal with some of these problems. I would like you to say a bit more about the efforts to incorporate technology, to provide quicker and easier access to documents that are referred to in legislation but also to help you to track legislation that uses this tool of incorporation by reference.
I think technology can help to address a number of the problems that we are facing, and I want to hear from you about the extent to which those efforts are being made.
Ms. Khanna: I think that technology is a big part of this and can be facilitative in trying to get a handle on what we have and how we access material that is incorporated by reference. The standards development organizations have a big part of this, and I do know that view-only access is available in many cases.
I think that through the use of artificial intelligence and semantic analysis, we will be able to have a better sense of the entire scope of the use of incorporation by reference.
I will ask my colleague, Patricia, if she would like to add anything.
Patricia Pledge, Senior Counsel, Legislative Services Branch, Department of Justice Canada: It’s true that the Standards Council of Canada and the standards development organizations in Canada are very attuned to the issue of accessibility and are working toward enhancing, as Ms. Khanna said, the issue of view-only access to their standards. Technology indeed is changing how regulators can ensure the accessibility requirement is met, and I think it will only serve to mitigate any of the concerns.
Senator Woo: Who within the government is providing leadership in identifying and deploying the best technologies to improve and enhance access to these documents? I understand the SCC and ISO are doing work separately for their documents, but obviously these references cover a much wider range of documents that go beyond standards-related matters.
Ms. Khanna: I would say it is a partnership. The regulation-making authorities themselves are involved. The standards development organizations are involved. The Department of Justice is involved, and Treasury Board Secretariat is involved as oversight for the entire regulatory process.
Senator Woo: If I may make a comment, left to the individual departments, I suspect not much will be done, and if it is done, it would be done a fairly in a haphazard way. So it might be an idea for some degree of centralized effort to look at this as a whole-of government challenge requiring, therefore, a whole-of-government response.
Mr. Di Iorio: Thank you both for your presentations.
Incorporation by reference is a drafting technique that has proven very useful over time, especially when it’s time to draft regulations or any directive, because obviously it avoids the cumbersome component of having to constantly be modified. And there are often technical areas.
However, one thing I don’t hear that I think is crucial — and there has to be a fundamental change — is that when you proceed along these lines, it has always to be done from the point of view of the user. The only thing that I hear is from the point of view of the regulatory individuals, the individuals who exercise the power of establishing the regulations. It’s human nature to always find a way to accommodate ourselves: We are doing the work, and 8 p.m. will come and we will have to go home; we have been here since 6:00 this morning and we have to finish this thing; we have been on this for three months, eight months or sometimes ten years. But we have to come to conclusion.
The problem is that the point of view of the user is not taken into consideration. There should be a clear indication that when you are about to put the machine on, let’s stop. Maybe you have to call a focus group, industry individuals or have some hearings and say, “This is how we intend to do it. Do you have suggestions? Are you going to be able to find it? Are you going to be able to access it? Are your constituents going to be able to address this?” That is crucial.
You are highly qualified individuals. We are very proud to have you as civil servants, but you cannot think about, as you just said, the infinite number of circumstances. You have to retain some flexibility. You can’t think about everything. So if you don’t do that in Canadians’ daily lives, it hinders individuals’ freedoms. It hinders the economy and it also hinders well-intended individuals who want to accomplish something but cannot do it.
So I think that you do have to go back to the drawing board and say, “Let’s look at it from the perspective of the user.” That is fundamental.
Now, speaking of the user, this country has two official languages; that’s the law of the land. Some moments we will speak English and some moments we’ll speak French. That is the reality. And I can understand there might be situations where it is not realistic to dictate that it has to be translated. There are impediments to that, but when it is, there should be a rationale, a space for a guide or some resources provided to the user to go about addressing that situation.
Ms. Khanna: I’ll begin with the first question. I can say that the regulatory authorities do take the user very much into account. Regulated parties are given an opportunity to comment on proposed regulations and are consulted in the development of standards. And they rely on the standards. What they are looking for in the law is the use of incorporation by reference because in many cases it will ease their work as well. So they are involved in the development of the standards and they are consulted.
Mr. Di Iorio: As I indicated, I’m not debating that the users would agree that there be incorporation by reference, because that is not what we’re talking about. We are talking about accessibility to it, which is totally different.
The individuals who are currently interacting say, “We agree with the use of incorporation of reference.” That was in my introductory remarks, but how will they have to do it in two, four or six years from now?
By the way, it’s not the same representatives in front of you, and they have to figure out how to access this information. We have to do it from their perspective and there has to be a formal process by which you measure and quantify the energy, resources, time and level of expertise required to access that information.
The Joint Chair (Mr. Albrecht): There are a couple of things we are trying to get at. I agree with Mr. Di Iorio that one is looking at it from the perspective of the user. If someone from a certain health company wants to develop a new product and comes to CFIA or Health Canada, and you are using the word “flexible,” how does the person know what is actually in place? And is the document available in French? Is it available at no cost? Those are the three things we are trying to get at so the user will not be stymied in their desire to move ahead with a product or new idea.
Mr. Oliver: I have a couple of questions on the material that you prepared, and then I have some other questions.
The material from our legal counsel said that that you had drawn on 25 regulations, but you’re referencing the number of 85. So I’m assuming that in the 25 regs you looked at, 85 documents were incorporated by reference. Is that what we are dealing with?
Ms. Khanna: Yes, that’s correct.
Mr. Oliver: I’m a chartered accountant by background and I used to do representative sampling in my previous life. You said this was a representative sample, but I would argue in a population of approximately 1,750 federal regs that a sample of 25 gives you no confidence.
I’m not sure how you drew the sample, how you randomized the 1,750 regs to make sure you had a randomized sample to draw from. But a sample size of 25 out of 1,750 gives you a confidence interval of about 45 per cent, which means you would never get the same results again if you repeated it. It is just not reliable. I don’t think it’s a representative sample; it’s just a snapshot of whatever 25 you chose to look at.
Having said that and looking at what you found, you mentioned a flexible approach, a technology-neutral requirement, that the documents can be accessed with reasonable effort, that they are intelligible, and there is an exception for bilingualism in certain sections. There was no mention of dollars. Are there any guidelines on affordability? I think that question was asked. I didn’t hear you. It sounds like it’s just left to the circumstance of each regulation whether the dollar amount is affordable.
Ms. Khanna: Yes, that’s correct. There is no ceiling. Each case is looked at on a case-by-case basis, and the decision to use it is made by the regulating authority based on the context.
Mr. Oliver: Legislatively, are we silent on this? Do we never talk about whether dollars are an issue? Or is it said that it is acceptable that there would be charges for certain incorporated documents?
Ms. Khanna: The law requires accessibility, and the government’s position is that as long as it is a reasonable cost, and “reasonable” is understood in the context in which you have to pay for the material, then it is reasonable and accessible.
Mr. Oliver: Thank you.
Second, out of the 85 incorporated documents you found, were any of them withdrawn from circulation or made no longer accessible online? We had documents from our legal counsel referencing SOR/2008-197, where 16 of the 36 third-party standards had been withdrawn from circulation and weren’t accessible. Of the 85, did you find any in the 25 regulations you looked at where there was no longer material reference available?
Ms. Pledge: We did find one instance where the standard was no longer able to be accessed at the source. If you turn to the short list, it’s the third entry on page 17. That appendix was no longer available at the source.
Mr. Oliver: What should have happened? I would assume that it is not appropriate for a regulation to be referencing a document that no longer exists. What would the mechanism be? Is it left to the department, then, to realize their reference document is no longer there, or is it left up to this committee to continue to audit these things to find them? What is the right mechanism for this?
Ms. Khanna: We have informed the department, so they will need to look at the situation and take the appropriate steps.
Mr. Oliver: If this committee had not asked the question and had not looked at the material, it would have gone unnoticed. It’s hard to draw any conclusions because this is not a representative sample, but I would have to assume quite a percentage — perhaps 10 per cent — of incorporated documents are now no longer locatable or accessible. What is the answer? Do we just leave this and hope you will send a note out to all the departments, asking them to check this, and then it goes away from our consciousness? How do we ensure this does not happen going forward?
Ms. Khanna: I can’t guarantee that it isn’t happening more frequently. That is one of the reasons this has been a valuable exercise. Members of public can also write in, or the department itself may, in trying to access the material for their own purposes, identify these kinds of issues.
Mr. Oliver: The answer I heard is that it’s up to the public, really, to detect it; unless you happen to stumble upon it, it’s up to the public to flag it.
Ms. Khanna: No comprehensive mechanism exists, but I think we would be relying upon the Standards Development Organization — any of the relevant stakeholders or players involved in the process. Departments would be very interested to know if that were the case. In this particular case, we were able to identify it through this work.
Mr. Oliver: Could you recommend to the committee a process where there is some kind of ongoing review of the 1,750-plus — and rapidly growing — regulations to make sure some of these issues are detected in a more reasonable and timely way?
Ms. Khanna: We’re certainly always thinking about how we could do that, yes.
Mr. Oliver: Can you suggest some things as to how that form of recommendation would be?
Ms. Khanna: The actual process? Not right now. If I could take it back, I would prefer to do so.
Ms. Pledge: It might be helpful to talk a little about the work the Standards Council of Canada does.
In general, every regulation-making authority is responsible to ensure that the material they incorporate by reference is accessible and that it remains accessible. I imagine that each department has its own internal process to monitor these matters.
The Standards Council of Canada also works with departments to identify standards that are outdated in regulations. They do so through various semantic and AI-type analyses. Those types of efforts bring to the attention of the departments where there may be a problem with one of their references. Then the department is charged with bringing it up to date.
Mr. Oliver: What I heard you say, Ms. Pledge, is that everything is okay, the mechanisms are in place and it’s working. We don’t need to do anything different. Are you saying that, or were you saying that something was being done but it’s not enough?
Ms. Pledge: I’m saying there are some efforts already in place to make sure that standards that are incorporated by reference remain accessible. It’s not perfect. There are cases where standards are withdrawn and the regulation-making authority has not had the opportunity or resources to immediately update the regulation for whatever reason.
No, it’s not without flaws, but processes are in place to make sure that material is accessible. It’s in everyone’s interests to make sure the standards that are incorporated are accessible so that the regulation can be enforced and the policy can be successful. But considering the thousands of references included in the regulations, there are bound to be circumstances where a standard becomes inaccessible for a period of time, and it takes a little time for the regulator to amend its regulations to respond.
Mr. Oliver: Thank you.
Mr. Dusseault: I would like to back up a little. At least, we are hearing that something is happening, that there is some form of verification, even if it is not systematic. I’m glad to hear that before the meeting ends.
My question is about context. If it costs $450 for a document available only in English, we will see that it is what it is and there is nothing we can do about it. Do you have an example of incorporation by reference that was either too expensive or in an inappropriate language, and for which a department had to take steps to make the document accessible? Would you be able to provide an example to the committee, today or later, so that we could see, in a certain situation, what scale was used to determine that one case was too expensive, or that another case, in French only, was not enough? If you have examples on hand now, or if you could come back to the committee to follow up later, that would be appreciated.
Ms. Khanna: I am not in a position to provide you with a concrete example of that. Those discussions would happen, and I’m confident that they do happen, between the regulating authority and the Department of Justice in the context of advice that is provided when the decision to use incorporation by reference comes up and the decision making around whether that is the appropriate tool. So accessibility and advice on accessibility come up in that context.
I don’t have a concrete example. I don’t know whether Ms. Pledge does.
Ms. Pledge: I don’t have cases in mind that we could discuss with respect to that. As my colleague has said, the advice would be given at the point of the proposed incorporation. If the legal advice at the time was that the cost was too prohibitive or that it was not justified to incorporate in one official language at that time, that advice would be provided to the department and they would proceed accordingly.
Mr. Dusseault: It would be ideal if you had some and could share them. I have a feeling it may never have happened. You see the context: it’s $500, so that’s the context. If you have examples that could change my impression, so much the better. It would be good to share them with us, I think.
Ms. Khanna: What may be possible is to provide an explanation — and this would be something that the regulating authority would need to give to you — as to why the cost is what it is and how it is accessible.
Mr. Dusseault: Would you have an example of a situation where a department decided to make the document available in another way, or by direct incorporation into the document? If you have an example of that, it could be instructive for the committee.
The Joint Chair (Mr. Albrecht): I want to try to wrap this up shortly, but I want to refer back to the short list you gave us. You said there were 85 incorporations by reference. If you go through this list and circle the ones that either are charging or are only available in one language, you get 53. Of 85, we have 53 of what I would term infractions as they relate to this committee’s concerns on accessibility, language, cost and the version, but especially the first two.
After you leave, our committee has to grapple with the way forward. I think Mr. Oliver was touching on something when he asked you whether you are prepared to come with some concrete recommendations as to how we could actually address these issues that have been a concern for our committee. That’s what we will have to grapple with.
Mr. Oliver: Again, drawing on your representation to us, in 25 regulations out of 1,750, you found 85 documents incorporated by reference. If that’s truly a representative sample, that means we have 5,950 incorporated documents. Out of our 1,750 regulations there are almost 6,000 incorporated documents. And as the chair just said, more than 50 per cent of them aren’t meeting the test under the flexibility requirement.
I think you said there was only one of the 85 that you found was no longer available, so that would project out to about 80 of those 6,000 no longer being available or accessible. I don’t even know what a regulation is if it references something that’s not available and can’t be referred to by the public.
I come back to the same comment as the chair: How do we wrestle with this going forward?
Ms. Khanna: Thank you. I guess I should not refer to this as a representative sample, not being a chartered accountant. I see that it is not a representative sample. It is a snapshot.
It was based on the four largest regulators and really was put together in an effort to be able to come to you with the basis upon which we could have a conversation. So that was the spirit in which it was prepared. I do not think it would be correct to draw larger conclusions on the basis of this list because it is not a representative sample. It is work that we have reviewed based on the four largest regulators, as I say.
In terms of this committee’s reliance upon the list, I would go back to my opening remarks and also encourage the committee to consider what we were not able to reflect in the list, which is that there are situations in which, although it may be a high cost or appear to be, it may also be available through view-only access and/or there may be very good reasons, copyright probably being the most significant one, why the cost is what it is. In your committee’s deliberations, we would just ask that you also keep that context in mind when looking at the list.
The Joint Chair (Mr. Albrecht): I don’t know if those comments have created any further desire for questions of our witnesses.
If not, we are going to dismiss our witnesses. Thank you for your help today. If you could follow up with your opening comments in writing, that would be helpful, at least for me. I would be happy with that.
We are going to follow up with discussion related to the topic our witnesses were here to discuss. I’m going to look to our general counsel for opening remarks and then we’ll look to the committee.
I want to come back to how I think we summarized it at the end of the time our witnesses were here. We need to deal with our lack of satisfaction regarding accessibility on the three points we have been discussing. What kind of process do we want to invoke?
We do have four recommendations that were previously reported on Report No. 90. Could our general counsel summarize those for us and, if possible, move ahead today? If not, we will come back and discuss this in greater detail with the actual printed recommendations in front of us.
Evelyne Borkowski-Parent, General Counsel to the Committee: If I go over the four recommendations the committee made when it tabled the report in March of last year, the first one, in essence, was that incorporation by reference should be used as a last resort and that in the RIAS, the regulation-making authority should justify their use of incorporation by reference, including the analysis of cost and language. So, instead of having a background conversation, it is transparent, and people reading the RIAS know why this standard was chosen. Why was it chosen over a free standard, for example?
That was the first recommendation of the committee — last resort and with explanation, possibly in the Regulatory Impact Analysis Statement. The RIAS is annexed to all of the regulations when they are published in the Canada Gazette.
The second recommendation was that to have equal access to the law, incorporated materials should be in both languages.
The third recommendation was that regulation-making authorities make all incorporated materials available for consultation by the public free of charge, including all former versions of the incorporated materials, because that’s the point that seems to get lost in the conversation with the Department of Justice every time. When you have an incorporation, as amended from time to time, if you are charged with offence that happened two years ago, what was the state of law at that point in time? Are all previous versions of that document available for you to consult? That was not part of the government response to the committee’s report. There was no mention of the temporal application. When the committee recommended that it be made available for consultation by the public, it can be read-only online. It can be public registry, where someone can access the document in a paper format without infringing on copyright. So there are ways to accommodate such things.
The last recommendation goes to the extent of incorporation by reference and the fact that no one kept track of it all these years. It was to establish a central repository of all incorporated documents and require that regulation-making authorities provide, on an annual basis, a list of all of their incorporated documents. It forces the regulation-making authority to go through their regulations, see what has been withdrawn, see what needs updating and then provide that information to the central repository.
None of those recommendations were accepted in the government response, but they are based on practices of other jurisdictions, such as New Zealand, that has a central repository, an annual reporting requirement and a requirement that incorporation by reference be used as the last resort.
The Joint Chair (Mr. Albrecht): That pretty well summarizes all of the concerns that were raised again today, especially the last one relating to the central repository.
Mr. Badawey: The witness made reference to the fact that the instruments should align with the actual intent of the regulations. Is it your opinion that these four recommendations, as instruments, do align with the intent of the regulation? The legislation, sorry.
Ms. Borkowski-Parent: Once it’s incorporated by reference, we don’t review it. It’s a document that exists by itself. It is part of the regulations, but counsel does not review it. Whether they align with the rest of the regulations I couldn’t possibly say at that point.
The Joint Chair (Mr. Albrecht): I think Mr. Badawey was asking: The four recommendations that you have here, do they actually fulfill the spirit of the legislation that we are operating under? Am I correct?
Mr. Badawey: Both, legislation as well as down to the regulation itself.
Ms. Borkowski-Parent: At the moment, the only statutory requirement is that incorporated documents be accessible. There is no definition of “accessible.” The determination, from what you have seen, has been left to a case-by-case basis. When the committee started seeing files with those incorporated documents, we asked regulation-making authorities what steps were taken to make things accessible. If it’s English only and at a cost, it was still considered accessible. That’s how the conversation started with the Department of Justice. What “accessible” means has been left to a case-by-case basis.
The committee also has to apply that requirement when it reviews all regulations. It has to make sure that the requirements of the Statutory Instruments Act have been met. So the committee established its own requirements for accessibility, mainly all previous versions available, both languages, and free of charge. Where the committee wants to move on from there is up to you.
Mr. Badawey: Essentially, what you are actually targeting in your recommendations is the process itself, to ensure that the process has accessibility in both languages, that the information is accessible going back in terms of prior to, in comparison to what is being proposed present and future, and lastly to have a central repository for the information. Correct?
Ms. Borkowski-Parent: Yes.
Mr. Badawey: Thank you.
Mr. Di Iorio: If I understand correctly, what counsel is saying is that — I’ll use an example. You have regulation pertaining to transportation of oil, and that regulation could incorporate by reference another regulation or a standard pertaining to international child adoption. The only person or entity judging whether it’s appropriate to do so would be the government. We never do that; we never look into that.
Ms. Borkowski-Parent: In that case, we will verify that the listed name is correct and that it’s still out there. We would probably have picked up on the fact that it wasn’t related to the regulations. But, as to looking at the document itself and whether it’s appropriate or not, we —
Mr. Di Iorio: I purposely used something that is impossible not to spot, but we all know that it could be easy, depending on the wording, not to notice that it’s not necessary. It could be technical and international and compliance or whatever, and then you see, “Well, it seems okay.” But nobody is going to go and actually check, except the government. The civil servants are going to check what’s in it and if it makes sense to make it part of the regulation.
Ms. Borkowski-Parent: Correct. They’re doing it when they are actually drafting the regulations. Whether they do it later on because —
Mr. Di Iorio: There is nobody reviewing their work. They review it themselves, within their own structure.
Ms. Borkowski-Parent: It goes to recommendation 1 in the report of justifying the use. So, if you are going to at least put in writing why it is that this was chosen as a document to be incorporated, it forces a discussion on the appropriateness of the standard.
Mr. Di Iorio: I have to tell my colleagues on the committee that I’m wholly unsatisfied with what I heard this morning. As with my first question, I was not questioning the concept of incorporation by reference. Evidently, I was asking about the users’ experience in accessing it, and I’m being told, “Well, the stakeholders are informed that there will be an incorporation by reference.” That’s not the debate we are having. We are not at that stage. We are way beyond that stage.
I feel very strongly. I think about solutions. One could be that we all resign as members of Parliament. “I’m certainly willing to offer my resignation as a member of Parliament,” but that could be considered extreme. A certain number of people here could trigger a general election, so we’re not going to go there.
But seriously, this committee has not done studies, but this could very well be a topic because we spend a lot of time every week going through something. I notice, when the new members come in and say, “So what are the parameters when these topics keep coming back?” We have now become quite efficient at doing the work, and we’re on top of things. It could be appropriate, maybe not now, to envisage doing it when some of us come back in the fall. We could do it at that time. We could undertake a study because this is something that touches upon everything, and therefore topics that come back will often come back because of this issue.
I think what is important in doing that study is to do it from the users’ point of view. Those are the people on whose behalf we work. Frankly speaking, I can’t imagine somebody saying, “I’m negotiating my working conditions and I’m telling my employer to make sure you pay me reasonably.” I can’t imagine a union or anyone negotiating or doing that, but basically this is what we are being told. It has to be reasonable. We are not going to commit to anything.
I think part of the solution in doing a study is that we would probably say that it’s not one-size-fits-all. We are going to have one statement for certain categories of situations, and then maybe we could have some exceptions or particular situations and at least always go back to the users’ experience.
The Joint Chair (Mr. Albrecht): We have already done a significant study in preparation to file Report No. 90, and there are all kinds of great examples in there about how the accessibility factors are being violated. In fact, one example is that costs could be as high as $7,000 to access materials needed for transportation of dangerous goods.
I take your point, but I’m reluctant to reinvent the wheel. We have tabled the report and made four clear recommendations. The government has said it doesn’t agree with us. I think it’s up to us as a committee to stand strong or roll over and play dead.
Mr. Di Iorio: What I meant by “study” is to have witnesses who come and illustrate to the committee the difficulties, the impediments and sometimes the impossibilities for a user to readily access it. Therefore, we would call upon the experts and sometimes users who have had such issues who could come and testify. This is Parliament; it is the Senate and the House of Commons.
Mr. Oliver: I am new to the committee and finishing my first year, when did that report get submitted?
Ms. Borkowski-Parent: March of last year.
Mr. Oliver: And the government said explicitly that they don’t agree with it? I read through it, but what they were saying back was a bit ambiguous.
Ms. Borkowski-Parent: The government response said that given the diverse nature of materials incorporating federal regulations and the fact that much of it is already readily available — and all turns on what your definition of “accessible” is — it is not clear that in all cases a registry would actually enhance accessibility without duplication or without limiting flexibility.
The government recognizes that policy direction to regulation-making authorities could further enhance accessibility and they would engage other partners. The government appreciates the joint committee’s ongoing interest on the incorporation by reference, although the government disagreed with the position in the joint committee’s report concerning the need to further amend the Statutory Instruments Act. It acknowledges that policy direction to regulation-making authorities could enhance the government’s commitment to accessibility.
The problem with that last statement is dealing with a legal requirement in the act that it be accessible with a policy document to regulation-making authorities. It’s two steps removed.
Mr. Oliver: I’m a bit unclear how we go forward. It is a recent report with very clear recommendations, and the government has declined to act on it. Does our counsel have any advice? Are they wrong? Other than we disagree with the intent, is there a way to go back without rehashing what we have already done?
Ms. Borkowski-Parent: When the committee invited witnesses to appear in the fall, in light of government response, it was requested that a full list be provided to give the committee an idea of the prevalence of incorporation by reference and how much of it is problematic.
Six months later what was provided is a 1.4 per cent sample. Counsel got the list last Thursday. Briefly going through the long list, there were some far more appalling cases of incorporation by reference: 36 with standards; 9 in English only; 13 with a cost. It was in that one regulation. So that was not provided in that sample.
The hope was that the committee would have data to go further, and that was not provided. So I’m a bit at a loss right now, unless the committee is willing to wait for a full picture of what the incorporation at the federal level is. It’s very hard to draw any further conclusion that the committee has not already drawn based on 25 regulations.
The Joint Chair (Mr. Albrecht): I think it is fair to say we have not had the situation clarified at all today. It’s further evidence that we have a problem. Without pointing fingers, let’s move forward and address the problem. That has to be our primary objective as a committee.
Mr. Dusseault: I hate to do that, Mr. Chair, but unfortunately I think we are late in the game. I referenced with the witness an act that was debated in Parliament in 2015. It’s the Incorporation by Reference in Regulations Act. I don’t want to do politics around the table, but at that time, in 2015, we really advocated for accessibility because it’s mentioned in the act. And we got Royal Assent in June 2015.
We argued that accessibility means free in both languages. I think we are unfortunately late in the game because the previous government had the same argument. The current government also disagrees with the recommendations. As a committee now, I’m not sure what we can do because we are kind of late in this game. The act was debated in the last Parliament and adopted, and the meaning of accessibility was the meaning that we had from counsel, unless I’m mistaken. But that’s my memory of what happened. And they have put in the Statutory Instruments Act what “incorporation by reference” means and what “accessible” means.
I think we are just late in this game. Unfortunately, I’m not sure we can do anything.
The Joint Chair (Mr. Albrecht): We’re late in the game, but it’s up to this committee to try and provide clarity around the definition of accessibility or not, and it’s our problem.
Mr. Ehsassi: I’m quite disturbed by what we heard today. This has been a frustrating committee on numerous occasions. In previous cases, we hear people or agencies or ministries coming up with excuses, but at least they are trying to give us the impression that they care. Perhaps the resources are not there or waiting something else to fix something.
In this instance, today, what we saw is that the system is completely broken and there is absolutely no one minding the shop and they just couldn’t care less. This is very different from what we have seen in the past and we can’t allow this to continue. The cavalier attitude — and they wouldn’t admit to it but we know there is a problem. We have Senator Woo providing a solution, technology, but they just skirt around that and it’s quite obvious they have never actually focused on technology.
Someone else here pointed out to them that this is not a sample thing, but they just couldn’t care less. It’s quite obvious that they have absolutely no system or no process in place to deal with this challenge.
The Joint Chair (Mr. Albrecht): We do have the four recommendations this committee has previously adopted and sent to the house. I will remind us to focus on whether we want to proceed with those.
Mr. Shipley: To your comments on the four recommendations, I’m just wondering where we go. The presentation this morning was very clear that they haven’t developed and might not even be interested in developing, from other resources of other countries, the technology that would be able to advance them into being able to do the tracking.
What is the benefit of negligence, quite honestly? I’m not sure. But the concern is that if we step forward and define, do we have that authority? It would appear at this stage that our authority almost comes to an end, and we are at persuasion.
The Joint Chair (Mr. Albrecht): I think our four recommendations did clearly indicate that’s what we want and that we expect that to happen.
Mr. Shipley: They don’t seem to be very open to accepting anything. If we were to define, for example, “accessibility,” what authority does that have to actually follow through on implementation?
Ms. Borkowski-Parent: In its sessional order of reference, the committee has the power to enquire and report upon the appropriate principles and practices to be observed in the enactment of statutory instruments. That is a very broad power. Generally, the committee focuses on specific instruments in the review based on the 13 criteria. It also has broad power to enquire into more systemic issues, which is one of them.
The other thing, and this is where counsel will need your guidance, is that, in the interim, instruments are being reviewed where documents are incorporated by reference. As a matter of practice, we will always ask what steps have been taken to make this accessible. The departments will respond or refer, actually, to the government response, which is that “if it can be accessed with reasonable effort, we consider it is accessible.”
Whether the committee is satisfied with that — the committee is still in charge of reviewing those statutory instruments. We will need your guidance in terms of how we deal with those files in the future. Do we signify the committee’s position that it should be free of charge and in both languages in all previous versions and continue to enforce this, as with any other issues the committee finds on files?
The committee can continue to raise the issue systematically on every file that has incorporated documents that are not accessible based on that definition.
In parallel, though, there is maybe the greater systemic issue of a lack of monitoring of the practice and how there is no guideline on what should be incorporated.
Mr. Shipley: If you take those four, let me give a quick example of the inconsistencies that any tracking device would remedy. You have the Emergency Measures Act in Manitoba, Yukon and Northwest Territories that are bilingual.
The Joint Chair (Mr. Albrecht): What page are you on?
Mr. Shipley: Sorry. That would be on pages 4 and 5.
Then when you get to P.E.I., B.C., Alberta, Newfoundland and Labrador, Saskatchewan and all that, it’s English. It doesn’t take a rocket scientist in terms of what they call — bad term — artificial intelligence, which means it’s not real, to fix those types of things.
To listen to the presenters not accept even some of these, even to take a step on one of them — I didn’t hear, “Let’s start at what is the easiest to fix.” We never heard any of that.
I know what we want to do, I think, around this table. I think we are looking at the vehicle in which to get there.
Senator Stewart Olsen: They don’t monitor, but is there any idea of how important this is? I mean, how many people have had problems trying to access this? Is this the hill we are going to die on, is really what I’m asking. I heard them too, and I didn’t see a huge interest in even completing the list for us.
I want to know how many people have tried to access this and not been able to. I think that’s really important.
Ms. Borkowski-Parent: I think I can say with a fair level of certainty that no one knows.
Senator Stewart Olsen: That’s a problem itself.
Ms. Borkowski-Parent: You remember the response to this question: “If a standard is withdrawn, who flags it?” Maybe people will flag it one day when they are trying to access it. Do they keep track of that? Probably not. But we will never know if a farmer in Quebec who wants to access the international rules for seed testing — well, that one is bilingual — but in English, if they will ever complain to anyone.
The Joint Chair (Mr. Albrecht): To respond briefly, if it is not important for us to have it accessible in our definition of what “accessible” is, maybe the regulation itself isn’t important either. We have to assume that the regulations are important and access to them is important, even if it only affects a small number of Canadians. That has to be the bottom line of what we are doing as a committee.
Mr. Sidhu: We are trying to find a solution here. We have a problem. We’re not happy with the witnesses. Are we, as a committee, able to come up with recommendations, send them to them and bring those witnesses back in six months and see if they have applied those changes or learn what they are doing about those changes? That’s what I would do. But it being my first day, I’m trying to get my feet wet.
The Joint Chair (Mr. Albrecht): I think that’s actually what the committee did last March when we filed Report No. 90 with the house. We got the response indicating they would not listen, so now we have to decide if we push this further. As Mr. Shipley said, what avenues can we use to heighten the awareness and —
Mr. Sidhu: Find a vehicle, yes. Thank you.
The Joint Chair (Senator Day): Like you, I’m looking for an avenue as to where we might go.
I notice that in the chronology we were given, the assistant deputy minister requested to meet with counsel to talk about preliminary steps. We declined that meeting and said, “Send somebody here.”
We might want to think about that as a possible meeting and say, “We are not very happy with the witnesses who came here. We still have these four points, and you really haven’t addressed them.”
The other thing that has been going through my mind is a point they made. I assume we are dealing with Justice because Justice answered pursuant to the order that was filed and adopted in each chamber. But they mentioned that the oversight body for regulations, including guidelines for questions of reasonableness, is Treasury Board. Have we had any contact with Treasury Board to say that we don’t think that this should be floating around without some reasonable guidelines?
Ms. Borkowski-Parent: The Department of Justice has been involved, as the Minister of Justice is responsible for the Statutory Instruments Act, where that provision on accessibility now lies.
Treasury Board oversees the regulatory process on a policy development basis and also to bring things so that the Governor-in-Council can make the regulations. It is certainly a possibility to engage the Treasury Board on that issue, but the Department of Justice, as the one responsible for the act but also as the one responsible for the drafting and the initial examination of the regulations, sees all of them go through. They are the ones giving opinions on whether things are accessible based on context. So, yes, it’s definitely a possibility to engage the Treasury Board.
As far as a vehicle, because I see that’s what members are looking for, I see two options. Either we go back to the department to get a full list so the committee can actually have data to provide — right now what we have is anecdotal evidence to further its position that was explained in Report No. 90 — or it can table a rejoinder to the report based on the unsatisfactory response it got from the department.
The Joint Chair (Mr. Albrecht): Committee members, I’m leaning toward the second option. We have had the discussion. We filed the report, we’ve had them here, and we’re still very unsatisfied. I don’t see a lot of wisdom in reinventing the wheel. Let’s file another report, if counsel is suggesting that is an option.
Mr. Dusseault: I think we should do that as an option because they found it so instructive to put that list up. We should continue to ask them to continue to put the list up and it will be so instructive.
Maybe it will be useful for departments to follow up on all those regulations at the end of day. We might just help them by continuing to ask them to put that list up. I would agree that we should just tell them thank you for that, again, but please continue.
The Joint Chair (Mr. Albrecht): Will you make a motion to that effect?
Mr. Dusseault: I will.
The Joint Chair (Mr. Albrecht): We have a motion on the floor that we resubmit the report —
Mr. Dusseault: No, it’s not to resubmit the report. It’s just to —
The Joint Chair (Mr. Albrecht): Re-emphasize our position.
Mr. Dusseault: They said earlier that they have put a list together so we know what is going on — the full list.
Mr. Diotte: Can we not do both, resubmit the report and ask for the full list as we had asked before?
Mr. Scarpaleggia: I think it’s a good idea to resubmit the report, but should we not add an addendum with some new insights?
The Joint Chair (Mr. Albrecht): Based on the input today?
Mr. Scarpaleggia: Yes. We say, “This is our report and we stand by it, but here are some added concerns. We have some new insights having met the officials,” and further emphasize the validity of this report.
The Joint Chair (Mr. Albrecht): I think we are agreed on the general direction.
Mr. Di Iorio: To Mr. Scarpaleggia’s point, we do have to add an addendum because otherwise we are simply resubmitting it.
I understand counsel’s role is to provide options. One option would be that every time there is an issue, we question it and if we have to, we’ll call on them, and that is a realistic option.
However, I find that if we don’t resolve this once and for all, we are going to be spending more time on that option than taking the time and doing it right now. Obviously, I’m of the view that we’re right and they are wrong. I’m comforted by the fact that there are many people around the table from different parts of the country, backgrounds, experiences and time in the House of Commons and the Senate. I think we have to bank on that to use this and come up with a comprehensive solution.
The Joint Chair (Mr. Albrecht): I think we have the motion. Is it worded clearly enough for our officials? We have the intent of it.
Ms. Borkowski-Parent: I’m not clear, I’m sorry. I thought the motion was just to request a further list.
Mr. Dusseault: A complete list, to reiterate the request.
Ms. Borkowski-Parent: Okay.
Mr. Dusseault: The full list.
The Joint Chair (Mr. Albrecht): I think there was a component of referring at least to the initial report, No. 90, and adding information based on today’s input. Can we do that?
Ms. Borkowski-Parent: Is that a rejoinder to the report? So you want both the list and the rejoinder?
The Joint Chair (Mr. Albrecht): Correct. That’s the consensus I see developing around the committee.
The Joint Chair (Senator Day): Our complete list is only part of what came out of this. We only have a partial list.
The Joint Chair (Mr. Albrecht): All in favour of that motion? Opposed, same sign? Carried.
We will move ahead. Thanks so much to our counsel for walking us through this.
It may be too late, but I would also encourage you to refer back to Report No. 90 and the government response. It really is a job well done by our committee, all of us, with good input from our counsel. I want to thank you again.
Shawn Abel, Counsel to the Committee: Before we move on, I wanted to make a short comment. I can see that members are frustrated and it seems that the committee has hit a wall. This is a big issue, but the committee often hits walls with issues that show up in individual regulations.
I have been around the committee for a long time. Something that our former general counsel used to say that has stuck with me is that this committee has one big reputation government-wide and amongst other small collections of lawyers who pay attention to regulatory issues, and that’s for persistence. When the committee hits a wall, the way it eventually resolves things is that it essentially continues to outlast departments, and officials in departments, and annoy them until they agree with the committee. If the committee doesn’t do that, then departments start to learn that they can push back until the committee gives up on things, which is not the way the committee has ever done its work. Although it can be very tiring and frustrating, it works most of the time.
Mr. Badawey: I agree. I think persistence is the order of day with this committee but I think, as well, we have to recognize that we have a responsibility; that’s why we exist.
With that, we also have to set a consistency with how we react to everything we deal with, not just one-offs. It goes back to our previous debate on that item. When we ask ourselves the question, “What should we do?” the answer is, “What do we do and how do we usually handle situations like this?”
My last point is that, as you say, our reputation is one of being persistent and consistent, but we must also ensure that the message gets out that we are not here just to put time in; we are here to do our job, and we’re going to do it in a manner of consistency and again, as you stated, being persistent to ensure we get the job done. Thank you.
The Joint Chair (Mr. Albrecht): Thank you very much, committee members. I’m going to dismiss this committee and reconvene in camera. We need a motion:
That the committee now proceed to sit in camera and that notwithstanding the usual practice, committee members and assistants be allowed to remain;
That the committee allow the transcription of today’s in camera meeting and that one copy be kept in the office of general counsel for consultation by committee members.
That is moved by Mr. Shipley. All in favour? Okay.
(The committee continued in camera.)